Who says you can't sue City Hall

It's nighttime, and Tom Tiebow and his wife are walking to their car down the street from a restaurant.As Tom and his wife approach their car, Tom's wife's heel gets caught in a crack in the sidewalk, and down she goes!

After getting her into the car, Tom goes back to the area where his wife fell and notices that the sidewalk is badly uneven and cracked, creating quite a hazard for anyone transgressing the sidewalk.

Unfortunately, when his wife wakes in the morning, her knee is badly swollen.After taking her to the doctor, and undergoing diagnostic testing, Tom and his wife both discover that her fall was worse than either of them initially thought, with her undergoing several surgeries, having been diagnosed with having severely torn the ligaments and tendons in her knee.

Tom and his wife decide to pursue an action against the owner of the sidewalk.In this case, the sidewalk is owned and maintained by the City in which they live.That means if his wife is to pursue a claim for her injuries, it will have to be against the city.

What does that mean?Can Tom's wife really sue City hall?The short answer is yes, but there are limitations and things that must be done before she can sue a city, county or state government in the State of Florida.

In the State of Florida, it is Florida Statute 768.28 which describes HOW you pursue an action against a governmental authority and WHO your action may be against.This statute also describes limitations on the AMOUNT you can collect from the government.

Limitations on the amount recoverable from government when it acts negligently is called "Sovereign Immunity".Florida Statute 768.28, which describes and defines Sovereign Immunity, is in accordance with our State Constitution (s.13, Art. X).

Section (6)(a) is the section which describes what actions must be taken before a claim can be made against a government authority.In particular, this section states:

"An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality or the Florida Space Authority, present such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing..."

Section (6)(b) states that this requirement to send out the notice and receive a denial is a condition precedent to maintaining an action, meaning, Tom's wife can't go after the city without presenting her claim in writing first.

It is Section (9)(a) which details who may or may not be sued.In particular, this section states

"No officer, employee, or agent of the state or of any off its subdivisions shall be held personally liable in tort or names as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property."

Of course, in that same section, it states that if the officer, employee or agent DID act in bad faith or with malicious intent, then the state or its subdivision will not be liable in tort for the acts or omissions of that officer, employee or agent.

Yikes.With that provision, you almost don't WANT to prove that the employee acted in bad faith in causing your injury.

Sections (9)(d)(1- 3) discuss liability relating to law enforcement, specifically in chase situations.Since Tom's wife was not injured in a chase (unless Tom was chasing her), I am not going to elaborate on those sections.

OK.So, now that we know what Tom's wife must do before making a claim against the City, how much can she recover for her injuries?

The amount Tom's wife can recover is governed by Section (5) of this statute.This section states as follows:

"The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances..."

Here comes the BUT that always seems to follow...

"...but, liability shall not include punitive damages or interest for the period before judgment.Neither shall the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000.00 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000.00".

Does this mean that the most Tom's wife could recover for her injuries against the city is $100,000.00, no matter how many surgeries she had to undergo?The answer is yes and no.Huh?

I say yes and no, because technically, $100,000.00 is the limit to the city's liability.However, if the city has excess insurance coverage, Tom's wife could collect any judgment is excess of the $100,000.00 from the carrier.In addition,

"... a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid...in part or in whole only by further act of the Legislature."

So, let's say that a judgment was entered on behalf of Tom's wife against the city in an amount of $500,000.00.Tom would then attempt to get a member of the Legislature to sponsor what is known as a "claim bill".This is a piece of legislation which authorizes payment of the judgment amount in excess of the sovereign immunity limits.

Under Rule 5.6, Rules of the Florida House of Representatives, the Speaker

"..may appoint a Special Master to review a claim bill or conduct a hearing, if necessary."

These hearings are almost like mini trials, where evidence is presented, testimony of witnesses taken, and a ruling issued.

Even with a judgment by a trial court and a Special Master's report in favor of Tom's wife, there is still no guarantee that the full Legislature will vote in favor of the Claim Bill and the Governor will sign it.Until all of that happens, Tom's wife will never recover any money in excess of the $100,000.00 paid by the city.